An Act to amend and reenact §54.1-2400.2 of the Code of
Virginia, relating to Department of Health Professions and health regulatory
boards; information obtained in an investigation or disciplinary proceeding;
authorized disclosures.

[H 2556]

Approved March 21, 2019

Be it enacted by the General Assembly of Virginia:

1. That §54.1-2400.2 of the Code of Virginia is amended and
reenacted as follows:

§54.1-2400.2. Confidentiality of information obtained during
an investigation or disciplinary proceeding; penalty.

A. Any reports, information or records received and maintained
by the Department of Health Professions or any health regulatory board in
connection with possible disciplinary proceedings, including any material
received or developed by a board during an investigation or proceeding, shall
be strictly confidential. The Department of Health Professions or a board may
only disclose such confidential information:

1. In a disciplinary proceeding before a board or in any
subsequent trial or appeal of an action or order, or to the respondent in
entering into a confidential consent agreement under §54.1-2400;

2. To regulatory authorities concerned with granting, limiting
or denying licenses, certificates or registrations to practice a health
profession, including the coordinated licensure information system, as defined
in §54.1-3040.2;

3. To hospital committees concerned with granting, limiting or
denying hospital privileges if a final determination regarding a violation has
been made;

4. Pursuant to an order of a court of competent jurisdiction
for good cause arising from extraordinary circumstances being shown;

5. To qualified personnel for bona fide research or
educational purposes, if personally identifiable information relating to any
person is first deleted. Such release shall be made pursuant to a written
agreement to ensure compliance with this section; or

6. To the Health Practitioners' Monitoring Program within the
Department of Health Professions in connection with health practitioners who
apply to or participate in the Program.

B. In no event shall confidential information received,
maintained or developed by the Department of Health Professions or any board,
or disclosed by the Department of Health Professions or a board to others,
pursuant to this section, be available for discovery or court subpoena or
introduced into evidence in any civil action. This section shall not, however,
be construed to inhibit an investigation or prosecution under Article 1 (§
18.2-247 et seq.) of Chapter 7 of Title 18.2.

C. Any claim of a physician-patient or practitioner-patient
privilege shall not prevail in any investigation or proceeding by any health
regulatory board acting within the scope of its authority. The disclosure,
however, of any information pursuant to this provision shall not be deemed a
waiver of such privilege in any other proceeding.

D. This section shall not prohibit the Director of the
Department of Health Professions, after consultation with the relevant health
regulatory board president or his designee, from disclosing to the Attorney
General, or the appropriate attorney for the Commonwealth, investigatory
information which indicates a possible violation of any provision of criminal
law, including the laws relating to the manufacture, distribution, dispensing,
prescribing or administration of drugs, other than drugs classified as Schedule
VI drugs and devices, by any individual regulated by any health regulatory
board.

E. This section shall not prohibit the Director of the
Department of Health Professions from disclosing matters listed in subdivision
A 1, A 2, or A 3 of §54.1-2909; from making the reports of aggregate
information and summaries required by §54.1-2400.3; or from disclosing the
information required to be made available to the public pursuant to §
54.1-2910.1.

F. This section shall not prohibit the Director of the
Department of Health Professions, following consultation with the relevant health
regulatory board president or his designee, from disclosing information about a
suspected violation of state or federal law or regulation to other agencies
within the Health and Human Resources Secretariat or to state or federal
law-enforcement agencies having jurisdiction over the suspected violation or
requesting an inspection or investigation of a licensee by such state or
federal agency when the Director has reason to believe that a possible
violation of federal or state or federal law has occurred. Such
disclosure shall not exceed the minimum information necessary to permit the
state or federal agency having jurisdiction over the suspected violation of
state or federal law to conduct an inspection or investigation. Disclosures by
the Director pursuant to this subsection shall not be limited to requests for
inspections or investigations of licensees. Nothing in this subsection shall
require the Director to make any disclosure. Nothing in this section shall
permit any agency to which the Director makes a disclosure pursuant to this
section to re-disclose any information, reports, records, or materials received
from the Department.

G. Whenever a complaint or report has been filed about a
person licensed, certified, or registered by a health regulatory board, the
source and the subject of a complaint or report shall be provided information
about the investigative and disciplinary procedures at the Department of Health
Professions. Prior to interviewing a licensee who is the subject of a complaint
or report, or at the time that the licensee is first notified in writing of the
complaint or report, whichever shall occur first, the licensee shall be
provided with a copy of the complaint or report and any records or supporting
documentation, unless such provision would materially obstruct a criminal or
regulatory investigation. If the relevant board concludes that a disciplinary
proceeding will not be instituted, the board may send an advisory letter to the
person who was the subject of the complaint or report. The relevant board may
also inform the source of the complaint or report (i) that an investigation has
been conducted, (ii) that the matter was concluded without a disciplinary
proceeding, (iii) of the process the board followed in making its determination,
and (iv), if appropriate, that an advisory letter from the board has been
communicated to the person who was the subject of the complaint or report. In
providing such information, the board shall inform the source of the complaint
or report that he is subject to the requirements of this section relating to
confidentiality and discovery.

H. Orders and notices of the health regulatory boards relating
to disciplinary actions, other than confidential exhibits described in
subsection K, shall be disclosed. Information on the date and location of any
disciplinary proceeding, allegations against the respondent, and the list of
statutes and regulations the respondent is alleged to have violated shall be
provided to the source of the complaint or report by the relevant board prior
to the proceeding. The source shall be notified of the disposition of a
disciplinary case.

I. This section shall not prohibit investigative staff
authorized under §54.1-2506 or investigative staff of any other agency to
which disclosure of information about a suspected violation of state or federal
law or regulation is authorized by subsection F from interviewing fact
witnesses, disclosing to fact witnesses the identity of the subject of the
complaint or report, or reviewing with fact witnesses any portion of records or
other supporting documentation necessary to refresh the fact witnesses'
recollection.

J. Any person found guilty of the unlawful disclosure of
confidential information possessed by a health regulatory board shall be guilty
of a Class 1 misdemeanor.

K. In disciplinary actions in which a practitioner is or may
be unable to practice with reasonable skill and safety to patients and the
public because of a mental or physical disability, a health regulatory board
shall consider whether to disclose and may decide not to disclose in its notice
or order the practitioner's health records, as defined in §32.1-127.1:03, or
his health services, as defined in §32.1-127.1:03. Such information may be
considered by the relevant board in a closed hearing in accordance with
subdivision A 16 of §2.2-3711 and included in a confidential exhibit to a
notice or order. The public notice or order shall identify, if known, the
practitioner's mental or physical disability that is the basis for its determination.
In the event that the relevant board, in its discretion, determines that this
subsection should apply, information contained in the confidential exhibit
shall remain part of the confidential record before the relevant board and is
subject to court review under the Administrative Process Act (§2.2-4000 et
seq.) and to release in accordance with this section.